SHRI SHAMBHU NATH AND SHRI LAL Vs. CC

JUDGEMENT

(1.) These two appeals are directed against a common order under which silver weighing about 180 kgs. were confiscated and a penalty of Rs. 25,000 imposed on each of the appellants. The facts of the case are that on 24.12.99 the silver in question was seized from a gipsy in which the two appellants were travelling. Shri Shambhu Nath claimed about 96 kgs. of silver and the other claimed the remaining. They are both jewellers.

(2.) In the adjudication order it has been held that the silver in question had been admitted to be smuggled from Nepal. This finding is made by taking resort to the provisions of section 123 of the Customs Act.

(3.) The submission of the learned Counsel for the appellant is that the impugned order is contrary to facts on record as well as the instruction contained in Circular No. 394/233/88 -Cus (AS) dated 11.6.90 of the Central Board of Excise and Customs. It is the submission of the learned Counsel that the silver was in small pieces (101 pieces weighing about 187 kgs.) and that according to the circular such goods were not to be subjected to proceedings under Section 123 of the Customs Act. He has also pointed out that within a few days of the seizure itself the appellants had produced letter dated 2.1.2000 from the seller of the silver, namely, Adarsh Refinery, Gorakhpur. Learned Counsel has pointed out that the list of the items sold shows that the pieces were of varying weight and purity. Thus, confirming that they are Kachha silver obtained from melting of ornaments and another articles. The contention of the Counsel is that such silver is most unlikely to be smuggled silver. Learned counsel has also referred to the statement dated 25.12.99 of two appellants before the Superintendent of Central Excise that the items were got from brokers and that they cannot say whether it was smuggled silver or silver from other sources.